STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5501

June 15, 1979

SCHOOLS AND SCHOOL DISTRICTS:

State school aid act

SCHOOL AID ACT:

Entitlement of out-of-formula school district to receive state school aid for students placed in the school district by court order

An out-of-formula school district is not entitled to receive general membership state school aid for students placed in the district by court order. However, such a school district is entitled to count students placed in the district by court order in the district's membership and to receive categorical aid and other aid for such students participating in eligible programs. The school district must count students placed in the district by court order in its resident membership and may not treat such students as tuition students.

Honorable Alvin J. DeGrow

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion on three questions which may be stated as follows:

State school aid payments are governed by the State School Aid Act of 1977, 1977 PA 90; MCLA 388.1401 et seq; MSA 15.1919(701) et seq. This statute provides basically for two types of state school aid payments. The first is general membership aid, which is based on the number of membership pupils enrolled and attending school in the district. The second is categorical aid, which pays a portion of the actual cost of providing certain special services as, for example, special education and pupil transportation.

1977 PA 90, supra, Sec. 21 establishes a formula for the payment of general membership state school aid. The formula guarantees that each local district will receive, for each membership pupil, a fixed minimum allowance of combined local and state revenues for each mill of property tax levied. If the local property tax generates sufficient local tax revenues to meet or exceed the minimum guaranteed allowance, then under the formula the district receives no general membership state school aid. Such a school district is considered by the Department of Education to be an out-of-formula school district.

1977 PA 90, supra, Sec. 24 provides, in pertinent part, as follows:

This section clearly does not appropriate any money or provide for any payment for such children. This section in authorizing the counting of each such child as 1 1/2 memberships makes no provision for any special payments for such children; it provides only that the total membership of the school district be adjusted for the determination of payment of state school aid. The formula established by 1977 PA 90, supra, Sec. 21 is to be applied to the total district membership as adjusted pursuant to 1977 PA 90, supra, Sec. 24. If the district still remains out-of-formula, then no general membership state aid is payable.

Dussia v Monroe County Employees Retirement System, 386 Mich 244, 249; 191 NW2d 307 (1971)

It is my opinion, in answer to your first question, that a local school district which is out-of-formula is not entitled to receive general membership state school aid for students placed in the district by court order.

Turning to the second question, pursuant to 1977 PA 90, supra, Sec. 24, students placed in the district by court order are to be counted in the district's membership if such children are actually enrolled and attending school in the district. The various categorical aid allowances established by 1977 PA 90, supra, for services such as bilingual instruction (Sec. 41), special education (Secs. 51-56), and pupil transportation (Sec. 71), all provide for payment of a portion of the actual cost incurred by the district in providing the various services to pupils in membership and attending. The district is entitled to count a court-placed student involved in these programs and to receive categorical state school aid reimbursement for such a student on the same basis as any other student in the district's membership.

It is, therefore, my opinion, in answer to your second question, that a local school district which is out-of-formula is entitled to count students placed in the district by court order in the district's membership and to receive categorical aid and other aid for any such students participating in eligible programs.

In response to your third question, 1977 PA 90, supra, Sec. 6(7) defines a 'tuition pupil' as a 'child of school age attending school in a district other than the child's district of residence.' Under 1977 PA 90, supra, Sec. 24, a student placed in the district by court order is counted for membership purposes as a resident of the district and, thus, by definition, cannot be treated as a tuition pupil. Moreover, 1977 PA 90, supra, Sec. 113 enumerates a number of other situations in which a child attends school in a district by direction of a court or by court order and provides in each instance that such a child shall be counted in the district's resident membership and not as a tuition pupil.

It is, therefore, my opinion, in answer to your third question, that a local school district must count a student placed in the district by court order in its resident membership and may not treat such a student as a tuition student.

Frank J. Kelley